The Twitter TOS Controversy
Ars Technica has a helpful recap on the "Twitter TOS controversy" - what seemed like an instance of online harassment which spun out of control due to Twitter's muddled public response.
Here's how Ars Technica describes it:
The sequence of events began like this: Ariel Waldman, now community manager for Twitter competitor Pownce (but was apparently not in this position when the issue began) became the subject of what she characterizes as harassing "tweets" (140-character messages sent to the service, usually broadcast to the public) last June containing her full name, e-mail address, and disturbing comments. At that time, she reported it to Twitter's community manager, who subsequently removed the offending user's updates.
According to Waldman's blog, she continued to be harassed for the remainder of the year, while the harassment began to spread between both Twitter and Flickr. Flickr reportedly banned the user in question and removed all instances of harassment, while Twitter did nothing in response to her attempts to report them until sometime this March. The company finally responded at that time, simply stating that the user was unquestionably "mean" but that since nothing illegal had been done, the account would not be banned.
This is where the disagreement between Waldman and Twitter comes in, as the issue to her was not legality, but harassment as it related to Twitter's Terms of Service, which the company openly said was modeled after Flickr's. The TOS clearly states that users "must not abuse, harass, threaten, impersonate or intimidate other Twitter users." Waldman chatted on the phone with Twitter CEO Jack Dorsey about the issue; according to Waldman, Dorsey apparently said that the company doesn't like to ban users for fear of a lawsuit. He also allegedly said at the time that Twitter had never dealt with stalkers before. Finally, in April, Dorsey wrote Waldman and said that after reviewing the matter further, the company decided not to get involved and that the TOS would be updated. "[G]ood luck with resolving the problem," he wrote.
According to Waldman's blog, she continued to be harassed for the remainder of the year, while the harassment began to spread between both Twitter and Flickr. Flickr reportedly banned the user in question and removed all instances of harassment, while Twitter did nothing in response to her attempts to report them until sometime this March. The company finally responded at that time, simply stating that the user was unquestionably "mean" but that since nothing illegal had been done, the account would not be banned.
This is where the disagreement between Waldman and Twitter comes in, as the issue to her was not legality, but harassment as it related to Twitter's Terms of Service, which the company openly said was modeled after Flickr's. The TOS clearly states that users "must not abuse, harass, threaten, impersonate or intimidate other Twitter users." Waldman chatted on the phone with Twitter CEO Jack Dorsey about the issue; according to Waldman, Dorsey apparently said that the company doesn't like to ban users for fear of a lawsuit. He also allegedly said at the time that Twitter had never dealt with stalkers before. Finally, in April, Dorsey wrote Waldman and said that after reviewing the matter further, the company decided not to get involved and that the TOS would be updated. "[G]ood luck with resolving the problem," he wrote.
I'm not really sure where to begin and I'm short on time, so let me just list the thoughts that come to mind:
- I have no doubt that online harassment can be negative and detrimental (and potentially was in this case), but someone somewhere will weigh the harassment against the context - harassment via Twitter (a tool that is used to update your movements) will sound odd to some people. Along these same lines, the harassment as described by Ars Technica mentions that the harasser used the victim's full name and e-mail address, which are likely publicly available, and were probably available prior to this incident. There's a piece by blogger/former Gawker editor Emily Gould in the NYT (link) that touches on privacy and disclosure of personal information as a blogger. This has not been tested in court very much in the online context, but people who bring these types of claims will be scrutinized as far as their own privacy efforts and how much information is available about them and how easy it is to interact with them online. (Waldman hasn't really expressed any interest in pursuing this legally.)
- Websites typically have no legal obligation to enforce so-called codes of conduct. I've never seen a single terms of services that imposes an obligation on the service to enforce these codes, and most terms expressly state that the service is not obligated to enforce the codes of conduct. Prof. Goldman alludes to this here (in the context of discussing the problems underlying the Lori Drew prosecution). The off-line analogy would be a common area in an apartment building, where, for example, the landlord may have a duty to protect and affirmatively act/police. I'm guessing we're going to have a tough time analogizing a website (particularly a free, social, fun! site) to the common area in an apartment building.
- A service such as Twitter is well protected from harassment perpetrated by their users (see, e.g., here (discussing a recent MySpace win).) It's true that Section 230, the section that precludes intermediaries from being treated as speakers/publishers, has developed some cracks. My instinct is that absent some other fact (such as Twitter agreeing to keep a feed closed or private and then opening it up, or compromising user information in a way that was not requested by the user) Twitter is unlikely to be held liable since by definition all it does is allow you to transmit content. All of the Section 230 exception cases involved some other activity and/or some content/profile management. Twitter is an information transmission tool - pure and simple. It's the very definition of what should be protected by Section 230.
- Twitter's TOS going forward: it's odd that Twitter borrowed Flickr's TOS (not odd actually, this happens all the time). This Wired post asks whether and how Twitter could change its TOS, including with respect to legacy users. Again, companies do this all the time. The argument is that ongoing use can be conditioned on agreeing to revised terms and most companies put up (and clearly announce) revised terms which old and new users agree to. There are some tweaks to this, for example last year the Ninth Circuit refused to enforce a TOS change that was unannounced. Along these lines, we should remind ourselves that TOS haven't had spotless records recently - see, e.g., Bragg v. Linden Research, Inc. (refusing to enforce Second Life TOS based on unconscionability). While we often look to the TOS as the be all end all, courts have been willing to look past the TOS.
- Here's Twitter's response on its blog ("In the meantime, we stand behind our current Terms, we care about users, and we take every complaint seriously"). For some reason that didn't quite come across the right way. Sometimes it's better to let your PR folks respond. The ars post seems to describe the Twitter execs as posting responses on multiple blogs (as comments?).
- This Valleywag post describing the incident makes the incident seem like a squabble between Twitter and the victim more than anything. I'm not commenting again on the seriousness of the harassment but how the dispute about Twitter's TOS spiraled. Waldman recently posted a response which I thought was pretty level headed. This makes me think that everyone is blowing this way out of proportion. At the end of the day, Waldman is basically saying to Twitter "hey you need to better police your network". Twitter says "everything seems to work just fine". It's probably best to let the users sort this one out....
Comments